This is a question we often get as criminal defense attorneys. And it can be the most important question in a criminal case. If you are not a United States citizen and you are facing a criminal charge, your immigration status and future in the country could be on the line.
This is why one of the first questions we ask our clients is this: Are you a U.S. citizen? If not, what could otherwise be a simple criminal case with minor penalties may have life-altering consequences for you and your family, including deportation or denial of renewal of your status. Clients often have misconceptions about the importance of considering their immigration status in addressing criminal charges.
Common misconceptions include the following:
What types of offenses could affect my immigration status?
Every case is unique, and that’s why it’s important to raise this issue with your counsel so you understand the potential consequences in your individual case. However, certain categories of offenses under immigration law can trigger negative immigration consequences, including the following:
What should I do if I am not a US citizen and I am charged with a criminal offense?
First, it’s important to retain an experienced criminal defense attorney who is accustomed to representing immigrant clients and is sensitive to the issue of immigration consequences of convictions. The Supreme Court decision of Kentucky v. Padilla, 559 U.S. 356 (2010) held that it is ineffective assistance of counsel for a defense attorney not to advise a client on the immigration consequences of a plea.
Second, before accepting any plea agreement, or deciding whether to go to trial or negotiate a plea, make sure you understand the consequences of the specific charge(s) you face on your status. Discussing this early on with your attorney can facilitate a plea negotiation that is focused on protecting your immigration status.
Can I avoid adverse immigration consequences from my criminal case?
Often, yes. While every case is different, in many cases a plea agreement can be fashioned specifically in a way to protect your immigration status. For example, a plea to an amended charge that does not trigger immigration consequences is often possible. Similarly, a deferred disposition agreement can be crafted in a way that avoids triggering immigration grounds of inadmissibility or removability. Of course, this depends on a number of factors, including the seriousness of the charged offense and any prior criminal history.
This is why it’s critical to understand the exact consequences you face, discuss them with your attorney, and ensure that you know the immigration consequences before you make any case-related decisions.
Are you or a loved one facing a criminal charge in state or federal court? Call us now at 703-884-2636.
It’s a scary moment for most. Two FBI agents in dark suits knock on your door unexpectedly. They introduce themselves and ask if they can come in and chat with you for a bit. They are probably friendly and full of smiles too. But the risk of mishandling this interaction can be serious. So what should you do?
First and most importantly, do not panic. Law enforcement officers, whether federal agents or local police officers, are simply doing their job, which includes interviewing potential witnesses and following up on leads. While you may be the target of their investigation, it is also possible that you are simply a witness or potential witness. Panicking will only serve to cloud your judgment and make it more difficult for you to react appropriately.
Get as Much Information as You Can.
While the agents or officers are there to get information from you, it is wise for you to do the same of them. Be sure to get their names, ask to see their badges to confirm their identities, and ask for their business cards because you will likely forget their names otherwise. That way if your attorney needs to follow up with them afterwards, your attorney will know who to contact. Ask them for the reason for their visit, and find out if they have a warrant. If they do, you should not do anything to obstruct their execution of the warrant. Remember that disagreements about the legality of a search warrant are resolved in court, not on the scene.
Do Not Make Any Statements Without Consulting an Attorney.
The investigators will likely ask you to let them in. But unless they have a warrant authorizing them to enter your home, you have no legal obligation to allow them in. Keep in mind that once you invite them inside, they have the right to look around and observe the surroundings of the area you allow them into, even without a warrant. That is because you voluntarily allowed them to do so. So the better approach is to speak with them outside of your home and to not invite them inside without a warrant.
Perhaps most importantly, you should not make any statements that could potentially be used against you without first consulting with an attorney. You may not always know what types of statements may later incriminate you, especially if you’re unsure about the nature or scope of their investigation. As such, the safest option is to decline to make any statements until you have consulted your attorney, even if the agents insist that you are not the target of their investigation. You should also be firm and stand your ground on this point. Keep in mind that law enforcement officers are trained to push people into making statements, so expect pushback from the agents the moment you tell them you do not want to make any statements without consulting an attorney. But you are well within your rights to do so, and you should not cave in to any pressure to waive your Fifth Amendment right to remain silent.
Do Not, Under any Circumstances, Lie to Law Enforcement.
This is where many people get in trouble. They panic and get nervous, even if they know they did not do anything illegal. Or perhaps they realize that a family member or friend could be in trouble, and they decide to protect them by misleading law enforcement. That is a terrible idea. Lying to law enforcement has serious consequences and leads to steep penalties under both federal and Virginia law.
Federal Law Penalizes Lying to Federal Agents.
Federal law, Title 18 United States Code § 1001 makes it a serious criminal offense do any of the following in connection with a matter under investigation by any branch of the federal government:
A conviction for violating this statute is punishable by up to five years in prison, and the penalty is increased to up to eight years if the violation is related to investigations of terrorism or certain other crimes.
Virginia Law Punishes Obstructing Investigations.
Virginia also makes it a criminal offense to knowingly lie to law enforcement during an investigation of another person. Virginia Code § 18.2-460 classifies this offense as obstruction of justice, a crime punishable as a Class 1 misdemeanor, with a penalty range of up to twelve months in jail and/or a fine of up to $2,500.
So instead of lying to law enforcement, simply exercise your constitutional right to remain silent and your right to consult an attorney before making any statements. As soon as the agents or officers leave, contact an experienced criminal defense attorney who can advise you on whether it is in your best interest to speak with the investigators or to maintain your right to remain silent.
If you have been approached by law enforcement officers, call the experienced attorneys at Elsayed Law PLLC today.
Legally possessing a firearm is a significant responsibility that requires proper training, proficiency, and safe storage. But what happens if, despite your best efforts, someone steals your gun, or you lose it?
Virginia Law Requires Reporting of Lost or Stolen Firearms.
In 2020, Virginia enacted Code Section 18.2-287.5 to require anyone whose forearm is lost or stolen to report the loss or theft to a local law-enforcement agency or the Department of State Police within 48 hours after discovering the loss or theft. This report will then enable the law enforcement agency to report this information to the National Crime Information Center, which is maintained by the FBI. The purpose of this statute is to enable law enforcement to quickly track and attempt to recover stolen firearms before they end up in the wrong hands, as well as to be able to identify any firearms used in the commission of a crime.
Does this law apply to antique firearms?
If a firearm qualifies as an "antique firearm" as defined in Virginia Code Section 18.2-308.2:2, then Virginia law does not require its owner to comply with the 48-hour reporting requirement for lost or stolen firearms. Virginia law provides a very specific definition of "antique firearms", so it is important to double check whether your firearm qualifies legally as an antique. In any case, while the mandatory reporting requirement does not apply to antique guns, it may nonetheless be wise to report any lost or stolen antique firearms to local law enforcement or Virginia State Police. In any case, most insurance companies require proof of such a report before responding to any insurance claim for a stolen firearm.
What is the penalty for failing to report a stolen or lost gun in Virginia?
If a gun owner fails to report a stolen or lost gun to law enforcement within 48 hours, Virginia law imposes a civil penalty of $250. The attorney for the county, city, or town where the violation occurred has the authority by statute to enforce this penalty and collect the civil fine, which must be paid into the local treasury.
Do I face criminal or civil liability if my gun is stolen or lost and I comply with the reporting requirement?
Virginia Code Section 18.2-287.5 explicitly provides lawful gun owners with immunity against criminal or civil liability for "any damages from acts or omissions resulting from the loss or theft," so long as they comply with the reporting requirement in good faith.
However, this immunity does not apply to anyone who makes a false report to law enforcement regarding a firearm. For example, a gun owner who falsely reports his gun stolen when in fact he authorized a third party to use it may potentially be held both criminally and civilly liable for the actions of the third party in using the firearm. In addition, under Virginia Code Section 18.2-461, making a false report to police is a Class 1 misdemeanor punishable by up to twelve months in jail and/or a fine of up to $2,500.
If you are searching for a family lawyer, then you are likely facing some level of stress or experiencing a life-changing situation. You are looking for guidance and reliable legal help, but how do you know that you have found the right match for you?
You need an attorney who treats you with respect and compassion, listens attentively to your concerns, and communicates and responds to your requests within a reasonable time period. Additionally, since family law is a specialized area of law with a lot of nuance, it is important to find out if the attorney focuses his/her practice on family law or is a general practitioner who dabbles in family law along with other practice areas. An attorney who devotes his/her entire practice to family law will likely be more knowledgeable about the specifics of this area of law and better equipped to advise you effectively.
Finally, since parties to a family case are often highly emotional and sometimes even contentious, it is important that you hire an attorney who will remain focused on the issues concerning you and prioritize your interests rather than inserting his/her personal views into your family matter, thereby exacerbating the conflict. You want a voice of reason that will keep you grounded and work towards a resolution with you. This will likely provide you with some peace of mind and save you money.
With millions of people using various social media sites including Facebook, Twitter, Instagram and many others, global communication has certainly advanced, and the world has become a smaller place. Social media has created a culture of oversharing, whether it is with a small-knit group of friends or essentially with the entire world through public posts. While there are many advantages to these various tools, if you are involved in a legal dispute, they can do more harm than good.
Regardless of your privacy settings, when it comes to your divorce or other family matter, your posts, comments, tweets and even messages are fair game. Parties to a divorce often request documents in what is called "discovery" and are permitted to request anything that is reasonably calculated to lead to admissible evidence. In a custody case, for example, this could include all posts, messages and comments about your children, any romantic partners, activities, your living arrangements and anything that reflects on you as a parent. If you are sharing your activities, pictures and events with your social media network, they are likely to end up in evidence at your divorce trial. Profanity you include in your posts could be used against you; previous statements you made could be used to impeach you; and marital status updates could be used to terminate your spousal support. Your social media accounts could build your opponent's case or make it stronger.
To avoid all of that, you should think twice before sharing or messaging. If it could be used against you later in any proceeding or if you would prefer not to share it with your Ex, his/her attorney and the court, then don't post it. Avoid using social media to write negative comments about your Ex because that will only reflect badly on you in court. Sometimes, it is best to simply stay off of social media while your case is pending. You may feel out of the loop, but you will avoid all the added trouble.
No-fault divorce in Virginia requires separation for one year (or six months if the parties do not have minor children and have entered into a separation agreement). Separation requires both the physical component of living apart as well as intent by at least one of the parties to terminate the marriage by divorce. Typically, the parties take up different residences during the separation period. However, for some parties, obtaining separate residences is not feasible because of financial hardship or other reasons such as unavailability of housing for one of the parties. In those cases, separation may be established under the same roof, but there are some requirements. Although not all of these may be required in every case, generally, separation in the same residence requires the following:
1. Cessation of intimacy and romantic relations: This is a requisite component of separation, and a single instance of intimacy between the parties will be considered reconciliation and an interruption of the separation period.
2. Living in separate bedrooms/areas of the house, preferably using separate entrances: While parties may live under the same roof and be legally separated, they should not share a bedroom, and whenever possible, avoid using the same entrance to the home. Chores should also be divided, and neither party should clean up after the other or care for his/her laundry.
3. Finances should be separated. The parties should keep separate accounts and establish financial independence. Both parties should avoid buying necessities or gifts for the other party. However, this does not preclude either party from paying child support or spousal support.
4. Groceries and food preparation should be separate. Neither party should buy groceries or prepare meals for the other. The parties should also avoid eating together as a couple.
5. Attending social functions separately: During separation, the parties should avoid holding themselves out as a couple. They should not attend social functions together, and if they choose to participate in the same social event, they should not ride together or sit together at the event. However, this should not prevent parents from participating in a joint birthday party for their child, for example, or attending other functions related to their children at the same time.
6. Wedding bands should be removed.
7. Inviting a witness to visit the home: Since separation under the same roof is more difficult to prove, the parties should invite a witness to periodically visit their home and see the separate arrangements they have made. Corroboration is required to prove separation in a divorce, so it is important that the parties make at least one party aware of their living arrangements while separated under the same roof, and the witness should visit the home to witness the separation.
While every case is different, and different judges may use various levels of scrutiny for separation in the same residence, these are general guidelines for establishing separation under the same roof. The parties should have evidence of their behavior during separation and should be prepared to explain to the judge the reason for sharing a residence during the separation period. Of course, not all parties can successfully separate under the same roof, so if you are contemplating divorce and would like to begin your separation, contact us for advice on the best approach for your situation.
Although divorce can generally be highly emotional, the one issue that typically evokes the strongest feelings is custody. Whether or not the parents were married, parties often struggle with the idea of dividing parenting time with their ex and insist on sole custody. However, while sole custody is awarded in some cases, the majority of custody cases result in some sort of shared custody arrangement, so it is best for parties to have realistic expectations.
Under Virginia law, custody is decided using ten factors to determine the "Best Interests of the Child." Therefore, the focus is on the interests of the child(ren) and not the parents in any custody matter. The court considers, among other things, evidence of each parent's relationship with the child and the role he/she has played and is willing to continue to play in the child's upbringing and development, the propensity of each parent to encourage the child's relationship with the other parent and any history of family abuse. Once the issue is placed before the court for a decision, the parties will be bound by the judge's decision. Therefore, it is often advisable for the parties to negotiate a custody agreement that is tailored to their family's needs. Here are some considerations to keep in mind:
If you need advice regarding custody, contact our office to schedule a consultation.
Since custody and support orders most often relate to minor children, they tend to govern the parties at least until their children reach the age of majority. This means that the parties can potentially be bound by an order that was entered 18 years ago. While that is a long time, for some families, a custody or support order entered that long ago can continue to meet their needs. But what happens when circumstances change? Are the parties still bound by that court order or can they modify it?
The most important thing to note is that until a court order has been entered to modify a previous order, the original order will remain in full force and effect. However, Virginia law allows either party to a support or custody order to seek a modification if he/she can meet the requisite burden and prove that 1) there is a material change in circumstances since the entry of the order and 2) that the change warrants modification of the order. While many changes can occur from the time of the order, only a material change in the parties' circumstances will be grounds for modification. For example, a party that is required to pay child support but has subsequently been terminated from his/her employment can probably seek a modification of the support order. However, the law only allows this if the person seeking modification did not voluntarily cause that change by, for example, violating a rule that led to his/her termination. Similarly, a recipient of support can seek modification of support if the payor's income increases sufficiently to warrant an increase in support.
The party seeking modification would have to prove the existence of a material change and that the circumstances of the parties justify a change in the court's order. Sometimes, although a party is able to prove a material change in circumstances, the court can deny the motion to modify support because of the needs of the other party and/or the children affected by the order. Therefore, it is important that a person seeking a reduction in support, for example, also proves that the parties' circumstances justify a modification.
Custody orders can also be modified if there is a material change in circumstances. A common example is where one of the parties relocates, and the parties' current custody/visitation schedule is no longer feasible. Another example is where one of the parties engages in activity that puts his/her fitness as a parent into question. Just as in support modification cases, the party moving for a modification will bear the burden of proving that there is a material change and that it justifies the modification of the custody order.
Finally, it is important to note that even if the parties agree to a modification by accepting a lower amount of support, for example, the court order will remain in effect and can be enforced by either party until a subsequent order is entered to modify it. However, if the court grants the modification, it will be retroactive to the date of filing of the modification petition.
Whether you are seeking a modification or you have been served with a motion to modify, it is often difficult to navigate the legal proceedings alone. Contact our office to schedule a consultation and get advice regarding your modification.
Over the past few decades, relocation from one country to another has become very common. With that, questions arise regarding the recognition of marriage and divorce in other countries. There are no clear-cut answers for these questions, but some general rules apply.
The overarching principle the governs recognition of foreign marriage is that a marriage that is valid where celebrated is valid in Virginia unless it is against the Commonwealth's strong public policy. This means that a marriage that is officiated in another country will be typically recognized in Virginia if it was performed and registered in accordance with the foreign country's laws. Examples of marriages that violate Virginia's public policy include incest, bigamy and underage marriage. Regardless of the other country's laws and whether or not it recognizes such marriages, because they violate the Commonwealth's public policy, they will not be recognized.
Divorce is a bit more complicated. If the foreign divorce is from another state within the United States, then it is accorded full faith and credit pursuant to the U.S. Constitution and will be recognized. However, divorces obtained in foreign countries are not subject to the same constitutional protection and are instead recognized under the discretionary principle of comity. Comity, according to the United States Supreme Court is "neither a matter of absolute obligation, on one hand, nor of mere courtesy and goodwill, upon the other. But it is a recognition which one nation allows within its territory to legislative, executive, or judicial acts of another nation..." See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).
Since divorces obtained in foreign countries are subject to comity, their recognition is not mandatory. Divorce in Virginia requires residence and domicile for at least one of the parties as a basis for jurisdiction. Virginia courts generally recognize divorces obtained from countries that have similar requirements for jurisdiction. Therefore, divorces obtained in many of the Western European countries are typically accorded comity. However, "quickie" 24-hour divorces obtained in the Caribbean nations, for example, are not recognized because they do not have a residency requirement and do not require a domiciliary intent. Although some countries, like the Dominican Republic, Mexico or Haiti may consider these divorces valid, Virginia courts will not accord them comity and they will be deemed invalid.
It is also important to note that oral divorce, for example the Islamic talaaq or other oral divorces based on tribal traditions, such as those performed in some African and Middle Eastern countries, which do not require court proceedings or documentation, are not recognized.
If you have a question about the validity of your foreign marriage or divorce or need to enforce the provisions of a foreign divorce or challenge its validity, contact our firm to schedule a consultation and get advice.
One of the most common causes of litigation between parties after a final domestic relations order is entered is the violation of that order. Whether it is a divorce decree, custody order or support order, compliance with its provisions is crucial to avoiding what is known as the "Rule to Show Cause" in Virginia. The law provides for punishment of the violator of court orders through the court's civil or criminal contempt powers. In the context of family cases, the court is alerted to a party's violation of an order through the filing of a Petition for a Rule to Show Cause by the other party. When a court order is violated, the party invoking the court's contempt powers must file a petition detailing the violation of the order by the other party and must include a full copy of the order that was violated along with the petition. A general allegation that the other party has violated a court order will not be sufficient basis for imposition of sanctions. Therefore, it is important to be specific about the alleged violation in the petition.
The petition seeks the imposition of sanctions against the violating party, which may include a fine, jail time with or without a "purge bond" (typically in support cases, an amount set by the judge to be paid by the violator in order to secure release from jail), payment of attorneys' fees, or suspension of a driver's license. The petition is then personally served on the violating party. When the petition is filed, the court will set a date for the violating party to appear and show cause why he/she has violated the court order. If the court finds that the order was violated, it will have the discretion to impose sanctions as it deems appropriate. Also, if requested, attorneys' fees are likely to be awarded if the court determines that the order was violated.
It is important to note that even if the alleged violation is of an agreement between the parties, a Petition for a Rule to Show Cause may be filed and sanctions may be imposed so long as that agreement was incorporated in a court order. A common example is where the parties settle their divorce through a Property Settlement Agreement, including provisions regarding support, the agreement is incorporated into the parties' Final Order of Divorce, and then the obligor fails to pay support as required by the agreement. Since the agreement was incorporated into the order, it essentially becomes part of the divorce decree and, although its terms were dictated by the parties and not the court, violation of the agreement is equivalent to violation of the order.
Also important to note is that, in support cases, the payee's acceptance of a lower amount of support is not considered waiver of the support obligation in a court order and can still subject the payor to a Rule to Show Cause. That is why it is important to abide by the court order so long as it is in effect and seek modification when necessary. Otherwise, sanctions may be imposed.
Whether you have been served with a Rule to Show Cause or you are seeking to enforce a court order that has been violated, contact our office to schedule a consultation and get advice.